In a disappointing but not unexpected move, the California Supreme Court today upheld the validity of Proposition 8, the California ballot measure that restricted marriage to heterosexual couples. However, the court also upheld the legality of the 18,000 same-sex marriages performed in California between May 2008, when the court granted equal marriage rights, and November 2008, when the voters took them away again by a narrow 52%-48% majority. According to the New York Times report (emphasis mine):
The opinion focused on whether the use of a voter initiative to narrow constitutional rights under Proposition 8 went too far.
Supporters of same-sex marriage, who filed several suits challenging the proposition, argued that the change to the state’s constitution was so fundamental that the initiative was not an amendment to the constitution but a “revision,” a term for measures that rework core constitutional principles.
Revisions, under California law, cannot be decided through a simple signature drive and majority vote, which is what led to Proposition 8; they can only be placed on the ballot with a two-thirds vote by the legislature.
But the justices said the proposition was an amendment, not a revision. It has historically been rare for the state’s courts to overturn initiatives on the ground that they are actually revisions, and many legal scholars deemed the challenge against Proposition 8 a long shot….
…In questions that clearly anticipated the logic of today’s majority
opinion, the justices had seemed to be seeking a middle ground that
would allow the rights they had affirmed the year before to be
preserved in the form of civil unions, which would be different from
marriage in name only. Justice Kennard suggested that the substantive
rights of gays were the same after the proposition, and all that had
changed was “the label of marriage.”
That distinction was deeply
dissatisfying to Mr. Minter, representing the plaintiffs, who argued
that without the right to the word “marriage,” same-sex couples would
find “our outsider status enshrined in our Constitution.”
Justice George’s opinion dealt directly with that point, stating that
the court understood the importance of the word marriage and was not
trying to diminish it. However, he wrote, the legal right of people to
call themselves married is only one of the rights granted to same-sex
couples in the decision last May, and so “it is only the designation of
marriage — albeit significant–that has been removed by this
Karl Manheim, a professor at Loyola Law
School in Los Angeles, called the decision a “safe” position written by
justices who can be recalled by voters. The change wrought by
Proposition 8 was anything but narrow, he said, and claiming that the
word marriage was essentially symbolic was like telling black people
that sitting in the back of the bus was not important as long as the
front and back of the bus arrive at the same time.
The Courage Campaign, a California-based GLBT activist group, is gearing up to propose a 2010 ballot measure that would restore same-sex marriage. Click here to watch their new TV ad (a shorter version of the Regina Spektor “Fidelity” video that they aired earlier this year) and donate. Go here to donate to Equality California and see a video of Marriage Director Marc Solomon (formerly of MassEquality) discussing their strategy to win marriage back.